THE COLONIAL LAWS VALIDITY ACT, 1865.
(28 & 29 Vie. e. 63.)
(Iniperial.)
AS AMENDED B Y
The Statute Law Revision Act, 1893 (56 & 57 Vie. c. 14).
4 4 Act
~ ~t o reiiiove Doubts as fo the Validity of C ’ o l m i d Ltruis.
[29th June, 1865.1
The short title was given to this Act by tlie Short Titles l e t , 1896
(Iniperial) .
WHEREAS doubts have been entertained respecting the validity of
divers laws enacted o r purporting to have been enacted by the legislatures of certain of Her Majesty’s colonies, and respecting tlie powers
of such legislatnres, and it is expedient that such doubts should be
removed :
1. Definitions.---The
term “co1ony’’ shall in this Act iuclude all
of H e r Majesty’s possessions abroad in which there shall esist tl. legislature, as herein-after defined, except the Channel Islanck, the Isle of
Man, and such territories as may for the time being be vested in Her
Majesty under or by virtne of any Act of Parliament for the
government of India :
The terms “legislature ) ’ ancl “colonial legislature” shall severally
signify the authority other than thd Imperial Parliament or Her Majesty
in Council, competent to make laws f o r any colony:
The term “representative legislature ” shall signify any colonial
legislature which shall comprise a legislative bocly of which one half
at’(‘ elected by inhabitanis of the colony :
T h e term “coloiiial law” shall include laws inade f o r al;y cololly
either by such legislatiire as aforesitid or by IIer Xajesty in Council:
582
SS. 1-3.
[Vol. 11.
An Act of Parliament o r arty provision thereof, shall, in constrning
this Act, be said t o extend to any colony when it is made applicable to
such colony by the express words o r necessary intendment of any Act
of Parliament:
The term ‘ ‘governor” shall mean the officer lawfully atliiii~iistering
the government of any colony:
The term “letters patent” shall mean letters patent, iitlcler the
Great Seal of the United Kingdom of Great Britain and Ii-cltmd.
,
2. Colonial laws, when void for repugnancy.-Any colouinl law
which is o r sliall be in any respect repugnant t o the provisious O E any
Act of Parliament estending to the coloiiy to which such law ?nay relate,
OF repugnant to any order. or regulation made under authority of such
Act of Parliament, OY having in the colony the force and effect of such
Act, sliall be read subject to sncli Act, order, or regulation, and shall,
to the estent of such repugnancy, but not ot’hcrwise, be and remain
absolutely void ancl inoperative.
As t o the occasion of this Act, see note to s. 2 of the Statuto of Wc@linstCr,
1931, title CONbfONWEA1,TH AND STATES.
The rights of the Impcrinl Pnrlinmcnt to legislate f o r :t colony a r e prPHOrVCd.
Uniler this section the local legislature may not enact anything repugnant t o such
t R.,
Tmpcrial legislation (22. v. Mamis, E$ m e Mar&, [l902] A.0. 51; N h d ~ l V.
L19261 A.C. 482). But this section does not apply to repugnancy t o Imperial
statutes which are law in n colony by virtue of the settlement and establishmonf;
of the colony by British settlers (Vintcmt v. Ah Ymg (1906), 8 W.A.L.R. 146).
This section does not render invalid a provision in a Queensland Act
,
docs n o t
vhich is inconsistent with the Constitution Act of 1867, a t @ but
constitute a n express amendment of that Act (MzoCawZey v. R., [1920] A.C. 691).
The powers given by the Commonwealth Constitution Act, 1900 (title
~OMMOSTVEALTH AND STATES)
, t o the Commonwealth Parliamerlt to legislate
upon certain subjects, were held not to exclude the applicability of this section
t o legislation under such poirers (Union Stea?~~sAip
Co. of N e w Zealand L t d . V.
The Comnwnwealtk (1925), 36 C.L.B. 130). The section Fill, however, cease
t o apply to legislation of the Commonwealth in the event of the adoption by the
Commomxyealth of s. 2 of the Statute of Westminster, 1931 (ibid., s. 10, title
COMMOSWEALTH
AND STATES).
For decisions as t o whether this section applies or not, see A.-G. for Queen&Eand v. 8.4.for the C o ~ ~ t r n ~ ~ w(1915),
~ a l t l ~20 C.L.R. 148; 22 C.L.R. 322
(Commonwealth Land Tax Assessment Act not repugnant t o Imperial Acts vesting control o f Crown lands in State Parliaments) ; lJ~uionS f e m h i p Co. of New
Zealand v. T h e Commonwealth, supra (provisions i n Commonvealth Navigation
Act 1910 repugnant to prgvisions in Imperial Rlerchant Shi ping Act, 1894) ;
Austratasim Steam Navigation Co. v. Smith (1883), 7 N.8W.L.E. (L.) 207
(provisions of State Navigation Act repugnant to those of Imperial Merchant
Shipping -Let, 1873) ; The Commonwealth v. Kreglinger Fernazc Ltd. (1926),
37 C.L.R. 393 (Commonwealth Act limiting appeal t o High Court from State
courts exercising federal jurisdiction, and the Judicial Committee Act, 1844,
emporrering Crown t o provide f o r appeal from any colonial court) ; I n r e Robert
Garbmr (1891), 12 N.S.W.L.R. (L.) 90 (provision of N.S.W. Crown Lands Act,
1589, repugnant to Imperial legislation giving right of appeal t o the Privy
Council); Busden v. W e e k e s (1861), Legge (N.S.W.) 1406 (question of
repugnancy between Nem South Wales and Imperial Acts relating to Crown
lands).
See a190 The Colonies (Evidence). Act, 1343 (Imperial), title EVIDEXCE.
3. Colonial laws, when not void for repugnancy.-No colonial law
shall be o r be deemed t o have been void or inoperative on the ground
of repngnancy t o the law of England, unless the sanie shall be repugnant
to the provisions of some such Act of Parliament, order, or regulation as
aforesaid.
See notes t o s. 2, ante.
583
4. Colonial laws not void for inconsistency with instructions t o
Governors.-No
colonial law passed with the concurrence of or
assented to by the governor of any colony, or to be hereafter so passed
o r assented to, shall he or be deemed t o have been void or inoperative
by reason only of any instructions with reference to such law or the
subject thereof which may have been given to such governor hy o r on
behalf of H e r Majesty, by any instrument other than the letters patent
o r instrument authorizing such governor t o concur in passing or to
assent to laws for the peace, order, and good government of such colony,
even though such instructions may be referred to in such letters patent
or last-mentioned instrument.
5. Colonial legislatures may establish, &c., courts of law. Representative legislatures may alter their constitutions.-Every
colonial
legislature shall have, and be deemed at all times t o have had, full power
within its jurisdiction to establish courts of judicature, and t o abolish
and reeonstitutc the same, and t o alter thc constitution thereof, and to
make provision for trhe administration OS justice therein ; and every
representative legislature shall, in respect to the colony under its jurisdiction, have, and bc deemed at all times t o have had, full power to
make laws respecting the constitution, powers, and procedure of such
legislature; provided that such laws slid1 have been passed in such
manner and form as’may from time t o time he required by m y Act of
Parliament, lctters patent, Order in Council, or colonial law f o r the
time being in force in the said colony.
As to confirmation of colonial laws previously passed, see also The Colonial
Acts Confirmation -4ct, 1863 (Imperial), unte.
As t o the power of the, Crown to establish courts, see generally the English
and Empire Digest, Vol. 11, p. 515; Vol. 16, p. 100.
As t o the meaning of the words ‘(manner and, form”, see A.-G. f o r New
South Walks v. Trethowan, [1932] A.C. 526.
In Taylor v. A.-G. f o r Queensland (1917), 23 C.L.R. 457, this section was
held t o empower the Parlia,~nentof Queensland to pass The Parliamentary Bills
Referendum Act of 1908 (not reprinted) which provided that where a bill passed
by the lower House in two successive sessions had, in the same two sessions, been
rejected by the upper House, it should become law on an affirmative vote of the
electors folloned by the assent of the Crown. I n MoCawley V. The King, [I9201
B.O. 691, it was held t o confer power on a colonial legislature to appoint 8
judge of the Supreme Court for a limited period, notrithstanding s. 15 of the
Constitution Act of 1867, ante.
6. Certiiied copies of laws assented t o or Bills reserved to be
prima facie evidence that they are properly passed. Proclamation as
t o Her Majesty’s disallowance or assent, published i n colonial newspaper, t o be prima facie evidence of disallowance or assent.-The
certificate of the clerk or other proper officer of a legislative body in any
colony t o the effect that the document to which it is attached is a true
copy of any colonial law assented t o by the governor of such colony, o r
of any Bill reserved for the signification of Her Majesty’s pleasure by
the said governor, shall be prim$ facie evidence that the document SO
certified is a true copy of such law or Bill, and, as the case may be, that
such law has been duly and properly passed and assented to, o r that
such Bill has been duly and properly passed and presented to the
governor ; and any proclamation purporting t o be published hy authority
584
ss. 6,7.
of the governor in any newspaper in tlie colony t o which such law or
Bill shall relate, and signifying Her Majesty's disallowance of any such
colonial law, o r Her Majesty's assent t o any such reserved Bill as aforesaid shall be prim$ facie evidence of such disallowance or assent.
See :dso tlie Evideuce (Co1oui:il Statutes) Act, 1907 (Tnipcrial), title
EYIDEPI'CE.
[7. h'ot crppticahlc t o Qiieens7mzd.l